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Jagadish Prasad Puranchand Vs. Commissioner of Police, Pune and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Applns. Nos. 1582 and 1583 of 1981
Judge
Reported in1982CriLJ1292
ActsConstitution of India - Article 22(5)
AppellantJagadish Prasad Puranchand
RespondentCommissioner of Police, Pune and Another
Excerpt:
criminal - detention - article 22 (5) of constitution of india and section 3 of maharashtra prevention of dangerous activities of slumlords, bootlleggers and drugs-offenders ordinance , 1981 - detention effected under section 3 - detention questioned - nature of activity and its magnitude justified detention as there was every possibility of recurrence of dangerous activity in future - held, in absence of any substance application liable to be dismissed. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking.....dharmadhikari, j.1. as both these petitions involve common questions of law and fact, they were heard together and are being disposed of by this common judgment. the commissioner of police, pune issued the orders of detention under section 3 of the maharashtra prevention of dangerous activities of slumlords, bootleggers and drugs-offenders ordinance, 1981, hereinafter referred to as the ordinance, detaining the detenus suganchand puranchand gupta and anand prasad bishweshwar dayal gupta. according to the respondents it was necessary to do so with a view to preventing them from acting in a manner prejudicial to the maintenance of public order. these orders of detention are challenged in these writ petitions on various grounds.2. shri paranjape, learned counsel appearing for the.....
Judgment:

Dharmadhikari, J.

1. As both these petitions involve common questions of law and fact, they were heard together and are being disposed of by this common judgment. The Commissioner of police, Pune issued the orders of detention under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drugs-Offenders Ordinance, 1981, hereinafter referred to as the Ordinance, detaining the detenus Suganchand Puranchand Gupta and Anand Prasad Bishweshwar Dayal Gupta. According to the respondents it was necessary to do so with a view to preventing them from acting in a manner prejudicial to the maintenance of public order. These orders of detention are challenged in these writ petitions on various grounds.

2. Shri Paranjape, learned Counsel appearing for the petitioners, contended before us that Section 3 of the Ordinance if read with the definition of phrase 'acting in any manner prejudicial to the maintenance of public order' makes no sense whatsoever and, therefore, the said provision does not confer any power upon the detaining authority to issue the order of detention under Section 3 of the Ordinance. It is further contended by Shri Paranjape that the whole legislation has become ineffective or has misfired and, therefore, the orders of detention issued by the detaining authority are ab initio void being without jurisdiction. Shri Paranjape also contended that from the bare reading of the orders of the detention it is quite clear that the detaining authority has not applied its mind to any of the relevant facts or circumstances. According to the learned Counsel the said orders disclose complete non-application of mind. The orders do not disclose under what particular clause or category the cases of the detenus fall and out of the numerous alternatives available under which particular clause action has been taken by the detaining authority. The grounds disclosed in the grounds of detention are not only vague but also vitiated by non-application of mind. According to Shri Paranjape the orders of detention are a mere mechanical reproduction of S. 3. They do not disclose as to which of the activities is prejudicial. They also do not disclose as to which category the detenus belong and which of the activities of the detenus is treated as prejudicial to the maintenance of public order. Thus according to the learned Counsel the orders of detention clearly denote confusion in the mind of the detaining authority and do not make any sense. Shri Paranjape further contended that assuming that the activities of the detenus fall under clause 2 of the definition which deals with bootleggers, but in that case also the orders as well as the grounds of detention are hopelessly vague because it does not disclose as to which of the provisions of the Bombay Prohibition Act have been contravened, nor they show as to which rules under the said Act are infringed. The grounds do not disclose any Head or Chapter or even section. Further, though in the grounds of detention an allegation is made that the detenus sold country liquor mixed and adulterated with poisonous substance to the persons without valid permits, there is nothing in the grounds of detention to indicate that the detenus ever sold this material with knowledge or necessary intention as required by the provision of the Bombay Prohibition Act. None of the witnesses whose statements are recorded and copies of which are supplied to the detenus has stated in his deposition that he had no valid permit, when he purchased the stuff. Thus, according to Shri Paranjape the orders of detention are vitiated by non-application of mind. He also contended that joint representation was submitted by the detenus on 20-7-1981, through the Superintendent of prison and the said representation was forwarded to the Home Department on 21-7-1981 and till today the detenus have not learnt anything about the said representation. Thus, the continuous detention of the detenus is also void under Article 22(5) of the Constitution of India for non-consideration of the representation made by the detenus. He also argued that the action is being taken pending the prosecution instituted against the detenus for a serious charge of murder and other offences under Sections 302 and 323 read with Section 34 of the Indian Penal Code and Section 67 of the Bombay Prohibition Act and as the said prosecution is still pending the preventive detention of the detenus has an effect of forcing them to disclose their defence at this stage and, therefore, according to Shri Paranjape on this count also the orders of detention are void. He has also challenged the vires of the provisions of the Ordinance on the ground that in substance preventive detention contemplated by the Ordinance is for a specific offence under the Bombay Prohibition Act and other laws in the field and, therefore, punitive in nature. In this view of the matter, according to the learned Counsel Section 3 of the Ordinance is also violative of the fundamental right of the detenu guaranteed under Arts. 14, 21 and 22 of the Constn.

3. On the other hand it is contended by Shri Kotwal, learned public prosecutor that the orders of detention read with the grounds of detention give all the particulars and the reasons for the detention of the detenus. Under the Ordinance there are no separate heads or sub-heads. The order of detention is contemplated only if the detaining authority is satisfied that it is necessary to detain a detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. This being the position it cannot be said that only because categories, clauses or sections of the various enactments are not disclosed there is non-application of mind. According to the learned public prosecutor the orders of detention read with the grounds of detention make it very clear as to on what grounds the order of detention has been made by the detaining authority. He further contended that the alleged representation was addressed by the detenus to the Advisory Board and not to the detaining authority and neither the Government nor the detaining authority has ever received such a representation. Therefore, there was no obligation on the part of the Government to consider the representations which were never received nor meant for it. According to the learned Public Prosecutor pendency of a prosecution is no bar for issuing an order of detention. The law laid down by the Supreme Court in Biram Chand v. State of U.P., : 1974CriLJ817 is no more good law in view of the subsequent decision of the Supreme Court in Haradhan Shah v. State of West Bengal, : 1974CriLJ1479 . According to Shri Kotwal, the detention of the detenus is preventive and has been ordered with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Action has been taken under the present. Ordinance because the detenus are bootleggers and under Section 17 of the Ordinance it is laid down that in case of bootleggers action should be taken under the Ordinance only. It is then contended by Shri Kotwal that the question about legality and the validity of the Ordinance has already been considered by this Court in Criminal Appln. No. 1254 of 1981, with Criminal Application No. 1278 of 1981 : Shivaji Bapu v. Miss Sharwari Gokhale, decided on 9th September 1981 : (Reported in : (1982)84BOMLR20 . If the various provisions of the Ordinance are read harmoniously and together, it is quite clear that power is conferred upon the detaining authority to detain a person with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It cannot be said that the definition clause is either vague or if the said clause is read with the substantive provisions of S. 3 of the Ordinance, it does not confer any power on the detaining authority to issue order. So far as the challenge based on Arts. 14, 21 and 22 of the Constitution of India is concerned, Shri Kotwal has again placed reliance upon the Division Bench decision of this Court wherein the legality and validity of the Ordinance has already been upheld. He has also placed reliance upon the decision of the Supreme Court in Hardhan Saha v. State of West Bengal, : 1974CriLJ1479 , wherein the Supreme Court has upheld the validity of MISA. It is then contended by Shri Kotwal that from the material placed on record including discovery of the goods, panchanamas and the statements of witnesses, it is quite clear that the detenus were also responsible for adulteration of the country liquor sold to them and the persons to whom liquor was sold were persons without valid permit. The learned public prosecutor then contended that enormity of activities itself clearly indicated expertise and the potentiality and, therefore even this incident in itself was enough for arriving at a satisfaction contemplated by S. 3 of the Ordinance. In support of this contention Shri Kotwal has placed reliance upon the Division Bench decision of this Court in Shahul Hamid Ismail S. Patel v. R. D. Pradhan : (1978)80BOMLR440 .

4. So far as the first contention raised by Shri Paranjape is concerned, viz., that Section 3 of the Ordinance read with the definition makes no sense whatsoever and, therefore, it does not confer any power upon the detaining authority to make an order of detention, in our opinion there is no substance in this contention. Definition clause is an interpretation clause. From the preamble of the Act it is quite clear that to provide for preventive detention of slumlords, bootleggers and drug offenders, and for preventing their dangerous activities prejudicial to the maintenance of public order, present Ordinance was issued. Essentially the present legislation is preventive in nature. As already held by us in Shivaji Bapu Chavan's case (Reported in : (1982)84BOMLR20 . Governor was competent to issue such an Ordinance. Once it is held that the Legislature has power to legislate on the topic, then it cannot be said that the Legislature has no power to lay down its own definition regarding various terms and phrases used in the Act. In most of the modern legislations there is an interpretation clause or a definition clause enacting that the words or phrases when found in the Act are to be understood as regards with the Act in certain sense. In other words, as part of the legislative function, the Legislature may enact law and define its meaning. Normally definitions in a statute or enactment are provided in order to give some definite meaning to words or phrases used in the Act. Thus it is well within the competence of the Legislature to define any term or phrase by laying down its own definition. Various matters referred to in the definition are connected with the object of the legislation i.e., preventing a person from acting in any manner prejudicial to the maintenance of public order.

Definitions of various terms and phrases defined in Section 2 will have to be read in this context. Substantive section which confers power to issue order of detention is Section 3 of the Act, which lays down in clearest terms that the detaining authority may. If satisfied with respect to a person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to do so, make an order directing that such person be detained. The various terms and phrases are defined in Section 2 of the Ordinance because there are more than one enactment in the field providing for preventive detention. This is the reason why the legislature has made a specific provision to Section 17 of the Ordinance that detention orders against slumlord, bootlegger or drug-offender should be made under the Ordinance and not under the National Security Act. This Ordinance has been enacted to deal with a specified class of persons viz., slumlords, bootlegger or drug-offender in the State. Therefore, these terms have been defined by the legislature in Section 2 of the Ordinance. The legislature has also defined as to what could be termed as the activities prejudicial to the maintenance of public order. Sub-clause (2) of clause (a), with which we are concerned in this petition reads as under.

'2. In this Ordinance unless the context otherwise requires :-

'(a) 'acting in any manner prejudicial to the maintenance of public order' means ........

(ii) in the case of a bootlegger, when he is engaged or is making preparations for engaging, in any of his activities as a bootlegger which affect adversely or are likely to affect adversely, the maintenance of public order; ......

This sub-section has an explanation which explains the meaning of the phrase 'public order' and then comes the definition of the term 'bootlegger' in clause (b) which reads as under :

'....................

(b) 'bootlegger means a person who distils manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provisions of the Bombay Prohibition Act, 1949, and the rules and orders made thereunder or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacles or any other material whatsoever in furtherance or support of the doing any of the above mentioned thing by or through any other person or who abets in any other manner the doing of any such thing.' Then comes the substantive section, viz., Section 3. In case of bootlegger, who is engaged or is making preparation for engaging in any of his activities as a bootlegger, which affects adversely or are likely to affect adversely maintenance of public order, a power is conferred upon the detaining authority to make a detention order under Section 3 of the Ordinance. Thus if the various provisions of the Act are read together harmoniously and with Section 17 of the Ordinance, it is quite clear that the present piece of legislation is a special enactment made for making a provision for preventive detention of the slumlords, bootleggers, drug-offenders for preventing them from carrying on their dangerous activities which are prejudicial to he maintenance of public order. This being a special enactment for the said purpose, it cannot be said that the legislation is either redundant or misfired. Special circumstances many times require special legislation. Having regard to the resources and influence of the persons by whom and the larger scale on which, and the manner in which, the dangerous activities are being clandestinely organised and carried on in violation of law by them, as slumlords, bootleggers or drug-offenders in the State of Maharashtra and particularly in the urban area, the legislature thought it fit and expedient to have a special piece of legislation so as to provide for preventive detention of these three classes of persons and for matters connected therewith. Therefore, it is not possible for us to accept the contention of Shri Paranjape that Section 3 read with the definition makes no sense whatsoever. It is not necessary to deal in detail with other submissions in view of our decision in Criminal Application No. 1254 of 1981 and Criminal Application No. 1278 of 1981 decided on 9th of September, 1981 : (Reported in : (1982)84BOMLR20 , Shivaji Chavan v. Miss Sharwari Gokhale.

5. It is also not possible for us to accept the contention of Shri Paranjape that since the order of preventive detention has been issued during the pendency of criminal prosecution, the detenus are forced to disclose their defence and therefore, the order of detention is illegal. In support of this contention Shri Paranjape is relying upon the decision of the Supreme Court in Biramchand v. State of U.P., : 1974CriLJ817 and particularly paras 9 and 10 thereof, which read as under :-

'In the above premises more than one question may arise for consideration with regard to the third submission of Mr. Anthony, Firstly whether the detenu can be said to be reasonably able to make an effective representation against this ground when he has been facing a trial in the criminal Courts. By disclosing his defence and certain facts, can he not complain that he will be handicapped in defending himself in the criminal Courts It is well settled that in a case of preventive detention the grounds must be clear and definite to enable the detenu to make an effective representation to the Government to induce the authorities to take a view in his favour. He must, therefore, have a real and effective opportunity to make his representation to establish his announce. Being faced with a criminal prosecution which is pending against him all through, we are clearly of the view that the detenu has got a proper and reasonable opportunity in accordance with law to make an effective representation against the impugned order of detention covered by the said proceeding.

Secondly, the question is whether it is open to the detaining authority to choose two parallel proceedings against the detenu as in this case. The fact that the ground of detention could be a subject-matter of criminal prosecution is not enough to vitiate a detention order if the detaining authority does not choose to prosecute him and only places an order of detention in accordance with law. In that case it will be no answer that the detenu must be prosecuted in criminal Court in an open trial. The choice of the authority concerned for the mode of tackling the illegal activity cannot per se be illegal and the order of detention will be judged on its merits in accordance with the law laid down by this Court. The position will be however, entirely different if the authority concerned makes an order of detention under the Act and also prosecutes him in a criminal case on the self-same facts. This, in our view is totally barred. The detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take recourse to a ground which is the subject-matter of a criminal trial or in the case of the first information report dated 5th August, 1973, furnishing the grounds 9 and 10 of the detention order. That fact itself introduces a serious infirmity in the order of detention for which the same must be held to be invalid.'

However, it cannot be forgotten that the larger Bench of the Supreme Court in Haradhan Saha v. State of West Bengal, : 1974CriLJ1479 has in terms held that the decision in Biram Chand's case : 1974CriLJ817 , which is a Division Bench decision of he two learned Judges is contrary to the other decisions given by the Bench of three learned Judges. Thus, in terms in Hardhan Saha's case the decision in Biram Chand's case is overruled. In this context this is what the Supreme Court has observed in Haradhan Saha's case (Paras 32 to 34) :-

'The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.'

'The recent decisions of this Court on the subject are many. The decision in Borjahan Gorey v. State of West Bengal reported in : [1973]1SCR751 , Ashim Kumar Ray v. State of West Bengal reported in : AIR1972SC2561 , Abdul Aziz v. The Distt. Magistrate, Bardwan reported in : [1973]2SCR646 and Debu Mahto v. State of West Bengal reported in : 1974CriLJ699 correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh reported in : 1974CriLJ817 which is Division Bench decision of the two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him for committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Cr.P.C. and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of a State or the public order, Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of surrounding circumstances'.

The decision in Haradhan Saha's case, : 1974CriLJ1479 is subsequently referred to and approved by the Supreme Court in Kanchanlal v. State of Gujarat, : 1979CriLJ1306 . In this view of the matter it is not possible for us to accept this contention of Shri Paranjape.

6. It is no doubt true that Shri Paranjape has also placed reliance upon the decision of the Calcutta High Court in : 1976CriLJ295 , M. L. Bore v. Dist-Magistrate. However, the said decision was given by the Calcutta High Court prior to the decision of the Supreme Court in Haradhan Saha's case and therefore, obviously in view of the subsequent decision, the contrary observations of the Calcutta High Court are no more good law.

7. So far as the legality and validity of the Ordinance is concerned, we had an occasion to deal with the said contention in Cri. A. No. 1254/1981, with Cri. Application No. 1278/1981 decided on 9-9-1981 : : (1982)84BOMLR20 , Shivaji Chavan v. Miss Sharwari Gokhale. This aspect of the matter is also considered by the Supreme Court in Haradhan Saha's case, : 1974CriLJ1479 while deciding the constitutional validity of Maintenance of Internal Security Act.

8. It is by now well settled that there is a basic distinction between the preventive detention and the detention following upon a conviction. Power of preventive detention is qualitatively different from punitive detention. Power of preventive detention is precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with the prosecution even if it relies on certain facts in which prosecution may be launched or may have been launched. The order of preventive detention may be made before or during the prosecution. The order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. Pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also no bar to a prosecution. See Kanchanlal v. State of Gujarat, : 1979CriLJ1306 . From the substantive provision, namely, Section 3, it is quite clear that the order contemplated under Ordinance is preventive in nature and not punitive though past conduct of a detenu is relevant and can be taken into consideration, ultimate order of preventive detention is passed with a view to preventing him from acting in nay manner prejudicial to the maintenance of public order. Therefore, it is not possible for us to hold that only because while defining the term bootlegger his activities which are in contravention of the provisions of the Bombay Prohibition Act or rules or orders or other laws are taken into consideration the nature of the order contemplated by Section 3 is not changed. The order issued under Section 3 is only preventive in nature and not punitive. In this view of the matter, it cannot be said that Section 3 or any other provision of the Ordinance is ultra vires of Arts. 14, 21 and 22 of the Constitution of India.

8A. So far as the contention based on non-consideration of the representation is concerned, in out opinion, there is no substance in the said contention also. In para 7, of the petition, it is alleged by the detenus that they had made a joint representation which was not considered by the State Government. The Commissioner of Police in his affidavit filed before us has submitted that he had not received any representation from the detenus. Shri Sovani, Assistant Secretary to the Government of Maharashtra has also stated in his affidavit that the Government of Maharashtra has not received any representation from the detenus. The copy of the representation is produced before us at Exhibit D. The representation is made by both the detenus and is addressed to the 'Advisory Board appointed under Maharashtra Ordinance Number III of 1981 dated 9th June 1981 c/o Home Department Mantralaya, Bombay 32 (through Superintendent. Yeravada Central Jail, Pune)'. In terms the representation is made under Section 10 of the Ordinance which refers to Advisory Board. The representation in the present case was made to the Advisory Board and not to the detaining authority or the Government. Only because it was sent c/o Home Department, it cannot be said that the representation was made to the Home Department of the Government of Maharashtra or to the detaining authority. The affidavits filed before us by the respondents clearly indicate that none of them had received such a representation. If the representation is not made to the detaining authority or to the State Government, then obviously there could not be any obligation upon them to consider it. However, it was argued by Shri Paranjape that the Superintendent of prison is an Agent of the Government and, therefore, if the representations are handed over to him, it must be held that they were handed over the Government. It was also argued by Shri Paranjape that in the ordinary course of events, the Government must have received them. In substance it is the contention of Shri Paranjape the there is a presumption in that behalf. Having regard to the facts and circumstances of the present case including details on affidavits of the responsible officers of the State Government, it is not possible for us to draw any such presumption in the present case. Only because the representations were forwarded through the Superintendent of prison, it does not mean that they were forwarded to the detaining authority or the Government. This is more so when the representations were addressed to Advisory Board. Assuming that there is any such presumption, such a presumption stands rebutted by the affidavit filed by the Commissioner of Police as well as the Assistant Secretary to the Government of Maharashtra. Therefore, it cannot be said that there is any failure on the part of the respondents to consider the representation made by the detenus. It may be noted that in this context Shri Kotwal, learned Public Prosecutor has placed reliance upon the decision of the Supreme Court in Mst. L. M. S. Ummu Saleema v. B. B. Gujral, : [1981]3SCR647 and has contended that the same principle should apply to a case of representation also. However, in the view which we have taken, it is not necessary to deal with the said contention of Shri Kotwal any further.

9. So far as the contention based on non-application of mind is concerned, the order of detention will have to be read with the grounds of detention as well as the copies of the documents furnished to the detenus. Material or the documents referred to and relied upon in the grounds of detention forms an integral part of the grounds. Neither the order of detention nor the grounds of detention is a complete code in itself nor they could be equated with a judgment given by a Court of law. What is contemplated by Section 3 of the Ordinance is subjective satisfaction of the detaining authority. The detaining authority has disclosed particulars in the grounds of detention. All the relevant documents, considered, referred to and relied upon were supplied to the detenus. These documents disclose more than enough particulars about the grounds of detention. In these circumstances it was not necessary for the detaining authority to make any reference to any particular provision of law, rules of orders. The detaining authority after considering all the material has come to the conclusion that it was necessary to issue an order of detention under Section 3 of the Ordinance. As already observed the nature of the order is preventive and not punitive. The grounds and the material also amply disclose that in the opinion of the detaining authority the detenus were bootleggers and the detaining authority was also satisfied that with a view to prevent them from acting in any manner prejudicial to the maintenance of public order, it was necessary to make an order directing them to be detained. From the conduct of the detenus referred to in the grounds of detention and other material, an inference could safely be drawn that the detenus had also requisite knowledge and intention. Not only this from the discovery, panchanamma, as well as the statements on record it is quite obvious that the detenus were also responsible for adulteration of the poisonous material. It is no doubt true that subsequently a letter was sent on behalf of the detenus stating that there was no discovery by the detenus and the material was planted by the authorities. This averment is denied by the Commissioner of Police in the affidavit filed on 13th of October 1981. The Commissioner of Police has stated that on verification he was satisfied that the the allegations had no substance and were made so as to create a possible defence during the course of the trial. It is not the case of the detenus that the application was not placed before the detaining authority or it was not considered. All the material placed before the detaining authority was fully considered by it before issuing the detention order. Therefore, it cannot be said that there was no application of mind.

10. The relevant portion of the grounds of detention in Criminal Application No. 1583 of 1981 relating to Suganchand Gupta reads as under :-

'That you being a managing partner to look after the country liquor shop of Shri Anand Prakash Bishweshwar Dayal Gupta a licensee of a retail country liquor shop situated at Nagpur Chawl, Yeravda, Pune, having an excise licence No. CL/III/157/1981 to sell country liquor as per the condition laid down in the licence on 17-8-1981, conjointly with the abovesaid Shri Anand Prakash Bishweshwar Dayal Gupta did sell country liquor at your above country liquor shop seized and adulterated with a poisonous substance viz, methyl alcohol to persons without valid permits knowing full well the fatal consequences of the same and thereby caused death of 5 persons (list attached at Schedule 'A') and caused serious bodily injuries to 40 person (list attached schedule 'B')'

The above fact will clearly indicate that your activities in the localities of Nagpur Chawl and nearby slum area adjoining thereto in Pune Police Commissionerate limits affect adversely the maintenance of the public order in the said localities and area'

Similar order is issued in case of Anand Prakash Gupta subject to the necessary alterations and variations. These grounds of detention give enough particulars to indicate involvement of both the detenus in the sale of country liquor which was mixed and adulterated with poisonous substance to persons without valid permits. From the statements of various persons which are on record, it is clear that the persons which are on record, it is clear that the persons to whom the adulterated poisonous substance was sold were the persons without valid permits. It is also clear from the said material that the detenus were responsible for adulteration of the poisonous substance. The act of adulteration could not be termed to be an accidental one. It indicates a continued activity. Thus, in the present case there was enough material before the detaining authority to arrive at a satisfaction as contemplated by S. 3 of the Act.

11. It is no doubt true that the incident alleged appears to be a solitary one. However, dangerous device disclosed in the grounds of detention demonstrate its potentiality and continued criminality and also indicates previous practice, experiment and expertise. It appears that but for the unfortunate death of various persons, criminal activity would not have been detected. In this case nature of the activity and its magnitude clearly justify an inference that if the detenus were not detained, they were likely to indulge in such acts in future. In our view to the present case, observations of this Court in Shaheed Hamid Ismail v. R. D. Patil : (1978)80BOMLR440 apply. Therefore, in view of the facts and circumstances of the present case, it can safely be held that the detaining authority was wholly justified in arriving at the satisfaction as contemplated by S. 3(1) of the Act. It is amply clear from the record that the activities of the detenus had caused and were calculated to cause physical harm and widespread danger to life and public health, which had a direct nexus to the maintenance of public order. In the view which we have taken, therefore, there is no substance in these petitions. Hence criminal applications fail and they are dismissed. Rule in each of the two applications is discharged.

12. At this stage an oral request is made by the learned Counsel for the detenus for permission to file an appeal to the Supreme Court. Since we have decided the matter on the basis of the well established principles of law as laid down by the Supreme Court itself, we do not feel that this is a fit case wherein such a permission should be granted. Hence leave refused.

13. Applications dismissed.


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